Minister for Justice and Equality v Seidi (Approved)

Factual and Procedural Background

The Applicant, Minister for Justice and Equality, sought the surrender of the Respondent to Portugal pursuant to a European Arrest Warrant (EAW) dated 8 July 2024. The EAW was issued by Judge Duarte of the District of West Lisbon as the issuing judicial authority. It is a prosecution warrant seeking surrender for offences of acquiring counterfeit currency and drug trafficking under Portuguese law, both carrying custodial sentences exceeding three years and classified as 'ticked box offences' under the Framework Decision.

The Respondent was arrested in this jurisdiction on 9 January 2024 following an SIS alert and has remained in custody since. This is the second EAW issued relating to the same offences. The first EAW, dated 14 March 2022, was issued by the Portuguese Public Prosecutor's Office without judicial oversight, which was lawful under Portuguese law at the time but later found problematic under EU law. After concerns were raised, a second EAW was issued on 8 July 2024, identical in substance but issued under judicial oversight in compliance with the Court of Justice of the European Union (CJEU) decision in Bob-Dogi. The first EAW was withdrawn by order of this Court following the second EAW's endorsement and the Respondent remains in custody under the second EAW.

Legal Issues Presented

1. Whether there has been an abuse of process in the manner these proceedings have been conducted before this Court, particularly concerning the issuance and execution of two successive EAWs.
2. If an abuse of process is established, what are the legal consequences, specifically whether surrender should be refused.

Arguments of the Parties

Respondent's Arguments

• The second EAW is an egregious abuse of process because the first EAW was issued unlawfully without judicial oversight, breaching the Respondent's rights under the Constitution, the European Convention on Human Rights (ECHR), and the European Charter, including his right to a trial in due course of law and liberty.
• The first EAW and the underlying domestic warrant were issued by the Public Prosecutor without court review, violating the dual level of judicial protection required by Article 8(1)(c) of the Framework Decision and CJEU jurisprudence, including Bob-Dogi, VA, and PI.
• The issuing judicial authority acted in bad faith or mala fides by knowingly issuing an unlawful EAW and detaining the Respondent without required judicial oversight.
• No assurances have been provided that time spent in custody under the first EAW will be credited if convicted.
• The only appropriate remedy for this abuse of process is refusal of surrender, as the issuing authority should not benefit from its misconduct.

Applicant's Arguments

• The second EAW complies with all relevant provisions of the European Arrest Warrant Act 2003, including the requirement for judicial oversight.
• The first warrant was issued in accordance with Portuguese law at the time, which did not require judicial oversight, and the issuing authority has remedied this by issuing the second EAW.
• There has been no breach of the Respondent's fundamental rights, nor any breach of Article 6(1) of the Treaty on the European Union or Article 1(3) of the Framework Decision.
• The question of crediting time served is solely within the competence of the issuing state, with no evidence that the Respondent faces an unfair trial or prejudice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the procedural history, noting the first EAW was issued without judicial oversight, which was contrary to EU law as clarified by the CJEU in Bob-Dogi. However, the Portuguese authorities promptly corrected this by issuing a second EAW under judicial oversight once the issue was raised. The Court acknowledged the first EAW was unlawful, but found no evidence of mala fides or bad faith by the issuing judicial authority; rather, the absence of judicial oversight was due to domestic legislative delay and was candidly admitted by the Portuguese authorities.

The Court applied established principles on abuse of process, emphasizing that such a finding requires exceptional circumstances amounting to unjust harassment or oppression. It considered relevant factors such as absence of delay in issuing the second EAW, prompt resolution of judicial oversight issues, no personal or health objections by the Respondent, and no evidence of risk to fair trial rights or failure to credit time served.

Drawing on precedents, the Court noted that successive EAWs are not inherently abusive and that abuse of process claims must focus on the Court’s own procedures rather than the prosecution abroad. The Court found that cumulative circumstances did not reach the threshold of abuse of process, despite the serious breach represented by the first EAW’s issuance without judicial oversight.

Holding and Implications

The Court’s final decision is to ORDER THE SURRENDER of the Respondent under section 16 of the European Arrest Warrant Act 2003.

The direct consequence is that the Respondent will be surrendered to Portugal pursuant to the second EAW, which complies with judicial oversight requirements. No abuse of process was established to a degree warranting refusal of surrender. The decision does not set new precedent but reinforces the high threshold for abuse of process findings in extradition and the importance of mutual trust and cooperation between Member States under the Framework Decision.